YALE DAN DARE v. SUTURA MUH?D GAMA GAMA
(2016)LCN/9236(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of December, 2016
CA/S/110S/2013
RATIO
JURISDICTION: POSITION OF THE LAW ON JURISDICTION OF THE SHARIA COURT OF APPEAL
In FARANSI v. NOMA (2007) 10 NWLR (PT. 1041) 21 SANUSI J. C. A. explained the jurisdiction of the Sharia Court of appeal thus:
“the well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia Courts (as they are now being named or called in some States adopting Sharia Legal System) the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjucate under the provision of S. 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria 1979. See the case of GARBA v. DOGONYARO (1991) 1 NWLR (PT. 165) 102; USMAN v. KAREEM (1995) 2 NWLR (PT. 379) 537; MAGAJI v. MATARI (2000) 8 NWLR (PT. 670) 722; MAIDA v. MOJU (2000) 4 NWLR (PT. 651) 99.
Section 277 (1) and (2) of the 1999 Constitution (as amended) which defines the jurisdiction of the Sharia Court of Appeal reads thus:
“Section 277
1. The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this Section.
2. For the purpose of Sub section (1) of this Section, the Sharia Court of Appeal shall be competent to decide
a) Any question of Islamic personal law regarding a marriage concluded in accordance with the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
c) Any question of Islamic Personal Law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;
d) Any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or Where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the First Instance to determine, that the case in accordance with Islamic personal law, any other question. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
Before Their Lordships
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBUJustice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHOJustice of The Court of Appeal of Nigeria
Between
YALE DAN DAREAppellant(s)
AND
SUTURA MUH?D GAMA GAMARespondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the decision of the Sharia Court of Appeal Sokoto in suit No. SCA/YB/110/2011 delivered on 28/11/2012.
Sutura Muh?d Gama ? Gama originally instituted this action at the Lower Court Yabo Claiming as follows:-
”I Sutura Moh?d Gama Gama suing Yale Dan Dare because I want this Court to collect my mother?s farm land. This farm is with him on pledge because when she was alive she gave him the farm on a pledge for the benefit of both of them. Now that she is dead he said the farm was sold to him and that I, her daughter I am not aware of that sale and that all her relatives are not aware of the sale/transaction between him and our mother.
That is why I am praying this Court to collect my farm from him and that the farm located at a place called Babban Wuri (Big premises) which is adjacent to: East ? Alu Majayi, West ? Almu, South ? Burtali, and North ? Daudu. And that in the place there is also a farm of Magaji and the younger sister of my mother, this is my claim.?
?After hearing the parties,
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the lower Sharia Court Yabo gave judgment in favour of the plaintiff in the following terms:-
”Based on what was transpired above of getting 2 witnesses and the confession of the defendant that farm was on hire to him, and the lack of any credible witness of the defendant Yale dan dare Gama Gama and the fact that the transaction was not in accordance with the principles of Shari?ah, because of this I, the lower Sharia Court Judge Dingyadi Maniru Abdullahi who was assigned to go to Yabo and decide the case, I ordered the revocation of this transaction which Yale Dan dare had with the mother of the plaintiff. He should go and collect his money from the person he gave the transaction money. I also returned the disputed farm to the plaintiff Sutura Gama-Gama and as from today, I ordered Yale to take away his hands from the farm as from today.
REASON FOR THE JUDGEMENT
1. Revocation of sale transaction becomes compulsory where there is no possession of the subject matter as it was reported in the book of AL-FIGHUL ? AL MAZHABUL ARBA?A, VOL. 2 page 137 that:
Because this disputed farm belong to the plaintiff and there is
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totally no sale transaction in respect, there is no evidence of such transaction between the plaintiff?s mother and the defendant.
2. Explanation on returning the price money to the defendant. See ASHALUL-MADARIKI VOL. 2.
Meaning: he knows his and us and those who sold to him should return his price money, he should collect his money from the person he gave it to. And the return of disputed property to the owners see page 72 where it was stated:
This farm is bordered: East-West 270 feets.
South-North 375 feets.
Adjacent to:
East ? Alu Magaji
West ? Dan Alu
South ? Stone adjacent to barren land.?
Dissatisfied with the above judgment, the defendant, Yale Dan dare, appealed against it to the Upper Shari Court Yabo. The respondent in the said Court not being satisfied with the decision of Upper Sharia Court appealed to the lower Court. The lower Court after hearing the parties gave judgment allowing the appeal as follows:-
?Because of all that happened and the reasons we gave above, we Sharia Court of Appeal Sokoto we over turned the decision of the Upper Sharia Court
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Yabo and confirm the decision of the lower Sharia Court Yabo, because the decision of the Upper Sharia Court Yabo, which gave its judgment in favour of the appellant before us in respect of this land dispute, that has measurement from the feet 270 South to North 375 feet East bordered with Alun Magaji West bordered with Dan Alu and South Bordered with Oath Route North Dauda.
Appealed allowed.?
Miffed by the above decision of the Shari?ah Court of Appeal Sokoto, the appellant on 8/1/2013 filed Notice of Appeal challenging the decision on 4 grounds.
The grounds of appeal (excluding the particulars) read thus:
?Ground One
The Court below (Shari?ah Court of Appeal Sokoto State) erred in law when it entertained an Appeal on issue which it lacked jurisdiction.
Ground Two
The Court below erred in law when it set aside judgment of Upper Shari?ah Court Yabo, when the said Court had jurisdiction to entertain the appeal in the first place.
Ground Three
The Court below misdirected itself when it dismissed the judgment of Upper Sharia Court Yabo and restored the judgment of the Lower
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Shari?ah Court Yabo, when there were competent witnesses that the owner of the farm land has sold it to the appellant.
Ground Four
The decision of the Shari?ah Court of Appeal Sokoto, Sokoto State was unreasonable, unsupportable and unwarranted having regard to the evidences before the trial Court.?
The record of appeal in the appeal was deemed properly transmitted on 20/2/2014 to this Court after which the appellant filed appellant?s brief of argument on 21/3/2014.
This appeal was heard based on the appellant?s brief of argument alone as the respondent failed to file Respondent brief of argument as required by the Rules of this Court.
The appellant?s brief of argument was settled by M. A. Sambo, appellant counsel.
Learned counsel formulated two issues for determination as follows:
?Whether the Shari?ah Court of Appeal Sokoto had jurisdiction to hear and determine the appeal before it between the appellant and Respondent being it (sic) a dispute over the ownership of the farm land?
Learned counsel referred to Section 277(2) of the 1999 Constitution (as
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amended) and submitted that the Court lacked jurisdiction to determine appeals on issues of title to land. He relied on MAISHANU v. MANU (2007) NWLR (PT. 1032) P. 42 MAGAJI v. MATARI (2000) 8 NWLR (PT. 670) at 722 and other cases.
He urged the Court to resolve this issue in favour of the appellant.
Having regard to the settled position of the law on the jurisdiction of the Sharia Court of Appeal as defined and circumscribed by the provision of Section 277 (2) of the 1999 Constitution (as amended). It is in my view, academic to go into the evaluation of the evidence by the lower Court in view of the obvious jurisdictional defects which the proceedings at the lower Court suffer from.
After carefully going through the claim of the plaintiff at the Court of First Instance, I am of the firm view that it is in respect of the title to farmland and not an Islamic Personal law.
In FARANSI v. NOMA (2007) 10 NWLR (PT. 1041) 21 SANUSI J. C. A. explained the jurisdiction of the Sharia Court of appeal thus:
?the well settled law now is that in the exercise of its appellate or supervisory jurisdiction in appeals before it coming from Sharia
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Courts (as they are now being named or called in some States adopting Sharia Legal System) the Sharia Court of Appeal of a State must restrict itself to questions of Islamic Personal Law only on which it is competent to adjucate under the provision of S. 277 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria 1979. See the case of GARBA v. DOGONYARO (1991) 1 NWLR (PT. 165) 102; USMAN v. KAREEM (1995) 2 NWLR (PT. 379) 537; MAGAJI v. MATARI (2000) 8 NWLR (PT. 670) 722; MAIDA v. MOJU (2000) 4 NWLR (PT. 651) 99.?
Section 277 (1) and (2) of the 1999 Constitution (as amended) which defines the jurisdiction of the Sharia Court of Appeal reads thus:
?Section 277
1. The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this Section.
2. For the purpose of Sub section (1) of this Section, the Sharia Court of Appeal shall be competent
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to decide ?
a) Any question of Islamic personal law regarding a marriage concluded in accordance with the law, including a question relating to the validity or dissolution of such a marriage or a question that defends on such a marriage and relating to family relationship or the guardianship of an infant;
b) Where all the parties to the proceedings are Muslim, any question of Islamic personal law regarding a marriage, including the validity of dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
c) Any question of Islamic Personal Law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;
d) Any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or
Where all the parties to the proceedings, being Muslims, have requested the Court that hears the case in the First Instance to determine, that the case in accordance with Islamic personal law, any other question.?<br< p=””
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Having regard to the above judicial authority and the provision of Section 277 of the Constitution aforequoted, I resolve this issue in favour of the appellant.
The judgment of the Sharia Court of Appeal Sokoto decided on 28/11/2012 in SCA/YB/110/2011 between YALE DAN DARE V SUTURA MUH?D GAMA GAMA is hereby set aside for lack of jurisdiction by the lower Court.
The further appeal from the decision of Upper Shari?ah Court Yabo decided on 31/10/2011 is hereby transferred to the appellate Division of High Court of Justice Sokoto for determination.
Parties are to bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have the advantage of reading the draft judgment just delivered by my learned brother, Awotoye, JCA. I agree that the appeal has merit and should be allowed.
The Provisions of Section 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is very clear and unambiguous that the issue involved in the instant appeal, not being predicated on Islamic Personal Law, cannot be within the jurisdictional parameter of the Court below.
?I also allow the appeal and abide by all the
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consequential order contained in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the priviledge of reading the draft of the judgment just delivered by my learned Brother, T. O. Awotoye, JCA and I am in agreement with his reasoning and conclusions in resolving this Appeal in favour of the Appellant. I abide by the consequential orders made.
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Appearances
M.A. Sambo, Esq.For Appellant
AND
Not representedFor Respondent
